[2024] UKUT 345 (AAC)

Nor does regulation 30(3)(c) containing a condition sit oddly with, or indeed lie outwith (ultra vires), the enabling powers of the parent Act under which it was made. Section 1(3)(b) of the Energy Act 2011 sets out that an energy plan is a green deal plan if “all of the requirements listed in paragraphs (a) to (e) of subsection (4) are met in relation to the plan at the time when it is made”. Those requirements include, per section 1(4)(c) and (4)(d) that the conditions mentioned in, respectively, section 4 as to assessment of the property and section 5 as to the terms of the plan, have been met. Crucially, however, the conditions, and thus the requirements, which need to be met in section 1(4)(c) and (d) involve in addition the “other matters” mentioned in sections 4 and 5. Pausing at this point, and with the focus just on section 1(3) and (4) of the Energy Act 2011, in my judgement the phrase “in relation to the plan at the time when it is made” must have a broader compass than the date on which the plan is made. This is because the assessment of the property will include matters that fall before when the plan is actually entered into. The use of “in relation to the plan” provides this broader scope. This is supported by the fact that both sections 4 and 5 of the Energy Act 2011 fall under a heading “Green deal plan” which indicates that both relate to the green deal plan.

Section 4 itself has the heading “Assessment of property etc”. Such headings can be taken into account in interpreting the statutory provisions over which they sit: see R v Montila [2004] UKHL 50; [2004] 1 WLR 3141 at paragraphs [34]-[36]. The use of “etc” is an unusual drafting device and may be thought to be too broad to be a useful indicator as to the meaning of section 4. However, reading it with the long title/introduction to the Energy Act 2011 (which includes that the Act is to “make provision for the arrangement and financing of energy efficiency improvements to be made to properties by owners and occupiers”), and what I have said above about the requirements relating to the plan at the time it is made, I do not see this as doing anything other than indicating that section 4 covers matters in relation to a green deal plan in addition to those strictly relating to the assessment process. Section 4(1)(b) then provides that under section 1(4)(c) the conditions as to other matters (in addition to assessment of the property) are “such other conditions (whether relating to the green deal assessor, the green deal provider, the improver or any other person) as are specified in the framework regulations”. This wording, including the range of actors provided for within the brackets and their differing roles outside the assessment of the property, are broad enough to cover regulation 30(3)(c) of the Framework Regs. That is particularly so, in my judgement, when the “other matters” relate to the conditions in section 4(8)(a) and 4(9)(a) and their focus on the estimated total of the proposed instalment and the period over which they are to be paid. All regulation 30(3)(c) (read with regulation 30(6)) of the Framework Regs is doing is focusing those conditions on the first year of the plan. I might add that no argument was made before me that regulation 30(3)(c) is ultra vires (that is, not enabled by the powers in) the Energy Act 2011.

Even if there is doubt about the scope of section 4, similar considerations apply in relation to section 5 of the Energy Act 2011. It, too, has an “etc” in its heading - “Terms of plan etc”, and also includes that the conditions under section 1(4)(d) as the terms of the plan and other matters are, per section 5(1)(b) ”such other conditions as are specified in the framework regulations”. Whilst the specific conditions as to the terms of the plan laid out elsewhere in section 5 are what must be in the plan as when it is entered into, the pre-plan step required by regulation 30(3)(c) of the Framework Regs may be said to be another condition which relates to the green deal plan.

Neither FTT therefore erred in law when deciding that satisfaction of regulation 30(3(c) of the Framework Regs was a condition or requirement of an energy plan being a green deal plan.

The other grounds of appeal concerning regulation 30(3)(c) are about whether then FTT erred in law in its substantive decision in deciding that regulation 30(3)(c) had not in fact been satisfied.

The first argument about satisfaction of regulation 30(3)(c) concerns whether the duty to ‘notify’ in the regulation requires written notification, and if it does whether the FTT erred in law in deciding that no such written notification had been provided to Ms Heaney.

Although the FTT in its substantive decision erred in law in deciding that the regulation 30(3)(c) information had to be provided in writing, such an error may not be a material error of law if the FTT did not err in law in deciding that that information had not in fact been notified to Ms Heaney, whether that notification was in writing or orally, or a combination of the two.

I should interpolate at this stage that I do not accept Ms Heaney’s argument that the FTT in its substantive decision had decided that other parts of regulation 30(3) of the Framework Regs had not been notified to Ms Heaney. It is true that in the passages addressing notification from the FTT’s substantive decision which I have quoted above, the FTT does refer at times to notification under regulation 30(3). However, no other parts of the FTT’s substantive decision find breaches of notification in respect of regulation 30(3)(a), (b) or (d), and its findings in paragraphs 1(b)(iii), 57 and 67 of the decision, although in places they do not identify regulation 30(3)(c) expressly, are plainly only about regulation 30(3)(c)’s terms.

In giving permission to appeal, the FTT judge did address the GDIP but said that it was “impossible to understand from [the GDIP] what first year instalments would be payable in accordance with regulation 30(3)(c)” and that “a maximum is not the same thing as an estimate”. It is problematic to read these observations as supplemental reasons for the decision, not least because they do not appear in the remade substantive decision which the FTT gave on the same day as it granted permission to appeal. In any event, I do not consider that as a matter of law a maximum cannot equate with an estimate. Firstly, the legislation does not prescribe that a maximum cannot be an estimate. Secondly, as a matter of language a maximum can fall within an estimate, for example by estimating or stating that the costs will be “no more than £1,000”. Thirdly, the statutory purpose of regulation 30(3)(c) is to inform consumers and to enable them to shop for different green deal plans. This purpose is met by giving the consumer a precautionary estimate based on a maximum: it thus provides them with the worst case estimate.